United States District Court, D. Rhode Island
ALICIA A. COVILL, Plaintiff,
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
Patricia A. Sullivan, United States Magistrate Judge
Alicia A. Covill alleges that she is disabled due to panic
attacks, anxiety and depression; this appeal is focused on
the severity of the limitations caused by these
well-established impairments. She has filed a motion to
reverse the decision of the Commissioner of Social Security
(the “Commissioner”), denying Disability
Insurance Benefits (“DIB”) under 42 U.S.C. §
405(g) of the Social Security Act (the “Act”).
She alleges that multiple errors tainted the decision of the
Administrative Law Judge (“ALJ”), including his
adverse credibility finding; his decision to afford minimal
weight to the opinions of her treating psychiatrist and
therapist, relying instead on the reviewing opinion of the
Social Security Administration (“SSA”)
psychologist; and his failure to conform his residual
functional capacity (“RFC”) finding to the to
the SSA psychologist's opinion. Defendant Carolyn W.
Colvin (“Defendant”) has filed a motion for an
order affirming the Commissioner's decision.
matter has been referred to me for preliminary review,
findings and recommended disposition pursuant to 28 U.S.C.
§ 636(b)(1)(B). Having reviewed the entire record, and
guided by the well-settled principle that this Court may not
substitute its own judgment for that of the Commissioner,
see Brown v. Apfel, 71 F.Supp.2d 28, 30-31 (D.R.I.
1999), I find that the ALJ's findings are sufficiently
supported by substantial evidence and recommend that
Plaintiff's Motion for Reversal of the Disability
Determination of the Commissioner of Social Security (ECF No.
10) be DENIED and Defendant's Motion for an Order
Affirming the Decision of the Commissioner (ECF No. 11) be
is a younger individual, thirty-four at the alleged onset of
disability on May 22, 2012. A high school graduate, who had
been attending (and continued to attend during the period of
disability) college,  she also worked as a bartender
and “at the piano bar doing pianos” (she is a
talented musician). Tr. 33-35, 248. A self-described person
who “love[s] people, ” Tr. 33, she has raised her
son alone; he was fifteen at the date of onset. Tr. 212.
the age of twenty-three, Plaintiff has had anxiety attacks.
Tr. 37. While she was working, Plaintiff's mental health
care was provided by her primary care providers at Anchor
Medical (Dr. Hardy and Physician Assistant Kochansky). Tr.
231-36. During this period, she frequently went to the
emergency room at Kent Hospital due to anxiety and panic
attacks. Tr. 37, 195, 202, 203, 212. While no provider has
questioned the credibility of Plaintiff's claim of
anxiety and panic attacks, despite many presentations to the
emergency room, Plaintiff was never hospitalized. Rather,
after mental status examinations that were generally normal
except for anxiety and occasionally depression, she was sent
home. See, e.g., Tr. 198 (“[w]ell appearing
and in no distress on leaving ER”); Tr. 213 (released
to home improved and stable). The only global assessment of
functioning (“GAF”) score assigned during this
pre-onset period was 55, evidencing moderate difficulties,
which was assessed by a licensed social worker at the Kent
Center a day after she had been to the emergency
room. Tr. 200.
period leading up to onset, Plaintiff was working three jobs,
attending school part-time and caring for her son. Tr. 212.
Overwhelmed by stress, in April 2012, she attempted suicide
by ingesting an overdose of prescribed Klonopin. Tr. 217. In
May 2012, she lost her job. Since then, the record refers to
various work and work-like activities. Tr. 226 (in July 2012,
medical treatment needed after drinking something at work);
Tr. 230 (in August 2012, reported she began new job); Tr. 241
(in October 2012, reported she is working intermittently
doing painting at friend's business); Tr. 292 (in January
2013, reported being full-time student in teaching, science,
and music); Tr. 315 (in April 2013, medical treatment sought
after dizziness at work); Tr. 357 (in December 2013, medical
treatment for tendinitis after moving); Tr. 389 (in February
2014, medical treatment for leg pain after heavy lifting
while helping someone move). However, to the extent that any
of these activities constituted “work, ” none
resulted in sufficient income to amount to a
“substantial gainful activity”
(“SGA”). See Tr. 11 (Plaintiff has not
had SGA since onset).
the April 2012 emergency room treatment for the overdose,
although she went to the emergency room for other reasons,
Tr. 226, Plaintiff had a gap in mental health treatment. She
did not see any provider for mental health treatment until
August 2012, when she initiated care with a new primary care
physician at Anchor Medical, Dr. Lyster. Tr. 230. At this
appointment, Plaintiff complained of a headache; Dr. Lyster
noted “[n]o recent discrete panic attacks” and
that Plaintiff had recently begun a new job. Id. On
mental status examination, Dr. Lyster found anxious thoughts
and mood due to feeling “stressed as [a] single working
mom also in school.” Tr. 231.
another treatment gap, on October 3, 2012, Plaintiff filed
her disability application. The next day, she saw Dr. Lyster
and complained of panic attacks and depression and explained
that she “did not want to make a f/u appt until her
insurance was in effect.” Tr. 228. Based on her
complaints, Dr. Lyster referred her to psychiatry for acute
depression and chronic anxiety. Tr. 229. On October 13, 2012,
Plaintiff started therapy with Nurse Janis DeNuccio at
Quality Behavioral Health (“QBH”) and on October
31, 2012, she initiated care with a psychiatrist at QBH, Dr.
Terry Mailhot. Tr. 246, 253.
when Plaintiff returned to Dr. Lyster on October 18, 2012,
she reported working intermittently painting a friend's
business, increased exercise, more time spent doing music and
increased focus on her son's well-being. Tr. 241. Dr.
Lyster's mental status examination findings were largely
normal. Tr. 242. Plaintiff did not see Dr. Lyster again for
mental health issues until February 4, 2013,  when she reported
panic attacks twice a week; on mental status examination, Dr.
Lyster made normal findings except for anxiety, which she
observed was “improving.” Tr. 399-401. Plaintiff
told Dr. Lyster that she “was uninsured for a time, now
reinstated.” Tr. 400. As far as the record reflects,
this is Plaintiff's last appointment with Dr. Lyster in
the relevant period.
October 31, 2012, and January 28, 2014, Plaintiff saw Dr.
Mailhot a total of seven times. Tr. 246-52, 297, 369, 375, 382,
384-87. During the intake examination, Dr. Mailhot observed
that Plaintiff was oriented with decreased concentration and
attention, no psychosis, and fair insight and judgment; based
on Plaintiff's reports of anxiety and a fear of crowds,
Dr. Mailhot diagnosed an anxiety disorder and assessed
Plaintiff's GAF at 60, evidencing moderate symptoms. Tr.
252. Despite Dr. Mailhot's treating form, which calls for
recording the results of a mental status examination at every
appointment, this is the only one recorded in the treating
record. Over the course of treatment, Dr. Mailhot
diagnosed bipolar and anxiety disorders, prescribed Lithium
and Klonopin, and noted frequent and severe panic attacks but
also that, noted that, other than in October 2013, Plaintiff
no longer went to the emergency room due to anxiety. Tr. 382.
approximately the same period (October 2012 through December
2013), despite a plan to have therapy every two weeks,
Plaintiff saw Nurse Janis DeNuccio for therapy a total of
seven times. Tr. 253, 296, 301, 374, 376, 380, 383. The
therapy notes reflect Plaintiff's anxiety and panic
attacks. See, e.g., Tr. 296 (“frequent anxiety
attacks, poor sleep”); Tr. 301 (“unable to
relax”); Tr. 380 (“anxious, tearful, and
overwhelmed after ending a long-term relationship”).
Much of the focus of the therapy was on the development of
relaxation techniques. Id. There are no mental
status examinations, although at each appointment, Nurse
DeNuccio recorded Plaintiff's subjective report of her
October 2013, Plaintiff was overwhelmed by severe anxiety
after finding out that the house she was renting had been
sold and that she would have to move. In the face of this
stress, Plaintiff sought emergency treatment at Kent
Hospital, where she was diagnosed with panic disorder without
agoraphobia. Tr. 345-56. On mental status examination, all
findings were normal, except for anxious mood; her GAF score
was assessed at 70 (evidencing mild symptoms). Tr. 346-47.
For reasons that are not clear, apparently on the same day,
Plaintiff was also assessed at the emergency room at Rhode
Island Hospital (“RIH”), where her GAF was noted
to be 45, evidencing serious symptoms. Tr. 427-35. She was
not admitted to either Kent or RIH; RIH staff
“discharged [her] to home, ” noting
“condition is good.” Tr. 435.
January 10, 2013, SSA psychologist Dr. Mary Hahn reviewed the
file and opined to anxiety disorder as a severe impairment,
resulting in mild limitations in activities of daily living
and social functioning and moderate limitations in
maintaining concentration, persistence, and pace with no
episodes of decompensation of extended duration. Tr. 57-58.
While Plaintiff's anxiety might occasionally disrupt task
focus, limiting her persistence to two-hour intervals, Dr.
Hahn found that she could make simple work-related decisions,
manage tasks both independently and around others, and
maintain a regular schedule. Tr. 59. Dr. Hahn's review
was performed before either Dr. Mailhot or Nurse DeNuccio
submitted their opinions; however, Dr. Mailhot's
psychiatric evaluation was in the file and Dr. Hahn
specifically noted it in her opinion. Tr. 57. Based on this
evidence, the claim was denied initially.
March 25, 2013, after three encounters with Plaintiff, Dr.
Mailhot signed an opinion on Plaintiff's mental
functioning. Tr. 309-12. In it, she lists diagnoses of bipolar
disorder and anxiety disorder and notes that Plaintiff has
had a poor response to pharmacology, although there are no
known side effects to her medications. Tr. 309. The opinion
provides for moderately-severe limitations in virtually every
sphere of mental functioning, except for the ability to
perform simple tasks, sustain personal habits, respond to
coworkers and maintain attention and concentration, as to
which Dr. Mailhot opined to moderate limitations. Tr. 310-11;
ECF No. 10-2 at 4. Her opinion makes no attempt to harmonize
these moderately severe findings with her own assessment of
“moderate symptoms” only five months prior.
See Tr. 252.
2013, during the reconsideration phase, SSA psychologist Dr.
Stephen Clifford reviewed the file. He reviewed additional
records submitted by Plaintiff, both from Dr. Mailhot and
Nurse DeNuccio, and agreed with Dr. Hahn's opinion. Tr.
68-70. It is not clear whether these submissions included Dr.
Mailhot's opinion, which was transmitted by counsel on
April 4, 2013. Tr. 312. It appears that the Mailhot opinion
may not have been included because the reconsideration
explanation states that “[t]here is no indication that
there is medical or other opinion evidence.” Tr. 69.
final opinion is dated April 2, 2014; in it, Nurse DeNuccio
noted diagnoses of anxiety disorder with panic and bipolar
disorder and treatment consisting of psychotherapy, lithium
and clonazepam, with no side effects from the medications.
Tr. 422. Except for Plaintiff's personal habits and
activities of daily living, she opined that Plaintiff was
moderately severely or severely limited in every area of
mental functioning and would miss more than four days from
work a month due to her condition. Tr. 423-25.
Travel of the Case
October 3, 2012, Plaintiff applied for DIB, Tr. 62, alleging
disability beginning May 22, 2012, due to depression and
anxiety. Tr. 54. The application was denied initially, Tr.
62, and on reconsideration, Tr. 73. At a hearing on April 15,
2014, Plaintiff, represented by an attorney, and a vocational
expert (“VE”) testified. Tr. 25-26. On May 28,
2014, the ALJ issued his decision finding that Plaintiff was
not disabled within the meaning of the Act. Tr. 6-19. On
September 15, 2015, the Appeals Council denied